The
accused, Fredrick Chafadza, 30, was charged with two counts. The
first was the murder of Charles Kudubva, 34 [“the
deceased”].
The second was the attempted murder of one Kudakwashe Musvamhuri
[“Kuda”].
The
accused and the deceased had been friends. Both had been teachers at
some local primary school. The incident giving rise to the charges
occurred around midnight ...
The
accused, Fredrick Chafadza, 30, was charged with two counts. The
first was the murder of Charles Kudubva, 34 [“the
deceased”].
The second was the attempted murder of one Kudakwashe Musvamhuri
[“Kuda”].
The
accused and the deceased had been friends. Both had been teachers at
some local primary school. The incident giving rise to the charges
occurred around midnight on 17 October 2013 at a rural bottle store
in Zaka, Masvingo Province.
Uncontested
facts were that from about 17:00 or 18:00 hours the accused and the
deceased had been drinking beer at the bottle store. Also drinking
beer at that bottle store was Kudakwashe
Musvamhuri and
his friend or relative, Kizito Mutongoza [“Kizito”].
There was an altercation between the accused and the deceased on the
one hand, and Kuda and Kizito on the other.
The
State's case was that in an effort to strike Kuda with a piece of
wood, the accused missed. The blow caught the deceased on the
forehead. He fell down and never woke up again. He died on the way to
hospital.
In
relation to the deceased, the accused was charged with murder as
defined in section 47[1] of the Criminal Law [Codification and
Reform] Act [Chapter
9:23]
[“the
Code”].
In relation to Kudakwashe
Musvamhuri,
the accused was charged with attempted murder as defined in section
189, as read with section 47[1] of the Criminal Law [Codification and
Reform] Act [Chapter
9:23]
[“the
Code”].
He
pleaded not guilty to both counts.
The
accused alleged that it was Kuda who, on the night in question,
mercilessly pummelled the deceased with a log and killed him.
Kudakwashe
Musvamhuri and
Kizito
Mutongoza were
the key State witnesses.
The
intrinsic aspect of Kuda's evidence was that sometime towards
midnight the accused and Kizito had an altercation. Kuda said when he
enquired of the accused what the cause of the altercation with Kizito
had been, the accused had responded by slapping him. Kuda had
retaliated. The two had fought. Their fight had taken them outside
the bottle store. Kuda said he had been overpowered. He had run away.
However, after a few metres he realised he had left his sandals
behind. He had come back for them. He saw that the accused and the
deceased had armed themselves with wooden logs. He picked a stone to
protect himself. The accused and the deceased advanced. The accused
swung the log to strike him. He ducked. The blow missed. It landed on
the deceased. The deceased fell down and lay unconscious on the
ground. The accused asked Kuda to fetch some water so that he could
render first aid to the deceased. Kuda refused. By then, Kizito had
come out of the bottle store. Together they walked away.
Kizito's
evidence was more or less the same as that of Kuda. He denied he was
ever involved in the fight with the accused. He said as the accused
and Kuda fought outside the bottle store,
he had remained inside with the deceased and the bar lady, one Tariro
Kurengu [“Tariro”].
The deceased had later gone outside to join the fight. Later on, he
heard Kuda shouting to the accused: “Look,
you have struck your friend!”
When he went outside he saw the accused dropping a log. The deceased
was lying prostrate on the ground. The accused asked Kuda to help him
resuscitate the deceased, but Kuda refused. He and Kuda went home.
The
third State witness was one Dominic Mombeyarara Tofara
[“Mombeyarara”].
He was a teacher. He was also the village constabulary. He said he
had been friends with both the accused and the deceased.
The
key aspect of Mombeyarara's evidence lay in what the accused
allegedly told him on that fateful night. It was common cause that
after the fracas at the bottle store, and the deceased lay dying, the
accused rushed to one Mike Mazhara Mutsava [“Mazhara”]
who was the village head and whose homestead was very close to the
business centre at which the bottle store was situated. Together with
Mazhara, the accused had proceeded to Mombeyarara to make a report.
Mombeyarara said the accused told him that he had accidentally struck
his friend, the deceased, when they had been fighting with Kuda and
Kizito. Mombeyarara further said that the accused said he could not
really understand what exactly had happened.
It
was Mombeyarara who assisted the accused to arrange transport for the
deceased to be ferried to hospital.
The
last State witness was police officer Trymore Hweta [“Hweta”].
He was the investigating officer. Among other things, he recorded the
accused's warned and cautioned statement. The significant aspect of
his evidence was that despite his being adamant that the accused had
confessed to him that he had mistakenly struck his friend, which
confession he had allegedly taken down in writing, in the warned and
cautioned statement, the accused completely denied the charge and
blamed Kudakwashe
Musvamhuri
for striking the deceased dead.
After
the close of the State case, the defence applied for discharge in
terms of section 198[3] of the Criminal Procedure and
Evidence Act [Chapter
9:07].
It reads:
“If,
at the close of the case for the prosecution, the court considers
that there is no evidence that the accused committed the offence
charged in the indictment, summons or charge, or any other offence of
which he might be convicted thereon, it shall return a verdict of not
guilty.”
It
is trite that where the court considers that there is no evidence
that the accused committed the offence, it has no discretion but to
acquit: see Attorney-General
v Bvuma & Anor
1987
[2] ZLR 96 [S]
and S
v Tsvangirai & Ors
2003
[2] ZLR 88 [H].
There are three basic considerations. The court shall
discharge at the close of the State case:
(a)
Where there is no evidence to prove an essential element of the
offence [Attorney-General
v Bvuma & Anor
1987
[2] ZLR 96 [S]…,.];
(b)
Where there is no evidence on which a reasonable court, acting
carefully, might properly convict [Attorney-General
v Mzizi
1991
[2] ZLR 321 [S]…,.];
and
(c)
Where the evidence adduced on behalf of the State is so manifestly
unreliable that no reasonable court could safely convict on it [S
v Tarwirei
1997
[1] ZLR 575 [S]…,.].
In
applying for discharge, counsel for the accused argued that
Kudakwashe
Musvamhuri and
Kizito Mutongoza were accomplice witnesses. This argument stemmed
from the fact that it was common cause that these two had also been
initially arrested and charged, together with the accused, for the
alleged murder of the deceased. They had remained on remand for close
to three years as the matter awaited trial. It was only towards the
days of trial that they had been removed from remand and turned into
State witnesses.
Counsel
for the accused's point was that as accomplice witnesses Kuda and
Kizito had a major reason to lie so as to completely extricate
themselves from the crime by blaming it all on the accused.
Of
Dominic Mombeyarara Tofara, counsel for the accused said he should
not be believed. As the village constabulary, he had all the powers
of arrest. Yet, on the night in question, not only had he refrained
from arresting the accused, but he had also allowed him the freedom
to ferry the deceased to hospital all by himself whilst he
[Mombeyarara] had remained behind. Therefore, the argument concluded,
it could be inferred that no such confession, as alleged by
Mombeyarara, had been made by the accused.
Of
Trymore Hweta, counsel for the accused said one only had to compare
what he was saying in his evidence in court with the contents of the
warned and cautioned statement that he himself had recorded from the
accused to see that no such confession, as alleged by him, had been
made by the accused.
We
dismissed the application for discharge at the close of the State
case for lack of merit.
Among
other things, even though Kudakwashe
Musvamhuri and
Kizito Mutongoza had
once been arrested for the alleged murder of the deceased, their
evidence was quite incriminatory. They were not accomplices in the
sense that the term is understood in criminology. Regarding Dominic
Mombeyarara Tofara, nothing
done by him on the night in question could reasonably be used to
impugn his evidence in court. Trymore
Hweta's
evidence might have been unhelpful, but enough had been led by the
State to warrant the accused taking the witness' stand.
When
he took the witness' stand, the accused maintained that it was Kuda
who had struck and killed the deceased. He alleged that both Kuda and
Kizito had been quite aggressive on the night in question. Kizito had
deliberately spilt opaque beer on his clothes when he had refused to
buy him a round. He said both Kuda and Kizito had, at one time,
accused the accused and the deceased of having stolen their
cigarettes. They had caused the bottle store entrance to be shut.
Kuda had attacked him unprovoked. He had chased him. At one stage
Kuda had asked for his knife. At another stage he had armed himself
with a stone and a log, threatening to raze the bottle store window
panes to the ground unless the entrance was reopened to enable him to
assault and kill the deceased.
The
accused said the bar lady, Tariro
Kurengu,
had eventually relented. She had opened the bottle store door. But
she had also ordered the deceased out. Kuda had grabbed the deceased
and had started to mercilessly assault him all over the body. Fearing
for his friend's life, the accused said he grabbed a log and
advanced towards where Kuda was busy pounding the deceased. He said
his intention was to scare Kuda away and rescue the deceased. This
had worked. He said he never had to use the log because when Kuda saw
him advancing, he ran away. But, as he ran away, Kuda shouted to the
accused to pour some water on the deceased. The deceased never woke
up. The accused reported the matter to the police. He also arranged
transport for the deceased
to be ferried to hospital.
The
accused called Mike
Mazhara Mutsava as
his witness. The significant aspect of Mazhara's evidence was that
when the accused called on him for assistance on the night in
question, he informed him that the deceased had been assaulted by
Kuda.
In
the closing submissions, the State presses for a conviction on
culpable homicide, not murder. It sticks by the evidence of all the
State witnesses except Trymore Hweta. It argues that the accused
intended to assault Kudakwashe
Musvamhuri but
missed. He hit the deceased instead. It says the fact that Kuda and
Kizito Mutongoza had at one time faced the same charge of murder as
the accused, arising from the same incident, does not affect the
quality of their evidence in court. They remained credible. Their
version of events remained consistent.
The
State further argues that Dominic Mombeyarara Tofara's evidence was
robust. It remained unchallenged. He had no reason to lie against the
accused. His evidence was supportive of that of Kudakwashe
Musvamhuri and
Kizito Mutongoza.
The
State concludes by saying that even if the accused had intended to
ward off Kudakwashe
Musvamhuri in
defence of his friend, he had used excessive force. He had used a
very big log to hit a vulnerable part of the body - the head. Thus,
such force, when used in defence of a person, was unreasonable. For
that, the accused should be found guilty of culpable homicide as
contemplated by section 259 of the Criminal Law (Codification and
Reform) Act [Chapter 9:23] [the Code].
On
the other hand, the defence argues that the State has failed to
discharge the onus resting upon it. Not only was there no proof of
murder beyond any reasonable doubt, but, also, a conviction of
culpable homicide is inappropriate because the accused was entitled
to defend his friend who was under attack. The log that he picked was
the only available weapon. The accused had no other means to ward off
the unlawful attack on his friend.
The
defence persists with the argument that Kuda and Kizito were
accomplice witnesses whose evidence should not be relied upon. The
defence also says that these two witnesses were furthermore shown to
have lied in respects that were not even material to the case. In
this regard, counsel for the accused was referring to the issue of
the kind of relationship between Kuda and Kizito. Kuda said he and
Kizito were half-brothers from their mothers' sides. But Kizito
denied it vehemently, referring to Kuda as no more than one who had
once been a herd boy at their homestead.
Counsel
for the accused was also referring to the issue of Tariro Kurengu's
love relationship with Kizito and the accused. Certain impressions
had been given that Kizito and the accused were rival suitors to
Tariro. Kizito begrudgingly admitted, in cross-examination, that the
girl had once eloped to him sometime after the incident, something he
had seemed to have concealed or denied.
On
the apparent conflict between the evidence of Mike Mazhara Mutsava
and Dominic Mombeyarara Tofara, regarding whether or not the accused
had confessed that it was him who had struck the deceased, or whether
he had said that it was Kuda who had struck the fatal blow, the
defence maintained that Mazhara's evidence had to be preferred
instead of that of Mombeyarara for two reasons:
(1)
Because the State had refrained from calling Mike
Mazhara Mutsava as
a witness as it knew that he would contradict what Dominic
Mombeyarara Tofara would
be saying; and
(2)
Because Dominic Mombeyarara Tofara was unworthy of belief since there
was no reason why he had not promptly arrested the accused for the
murder of the deceased after he had allegedly confessed, but had,
instead, left him to ferry the deceased to hospital all by himself.
We
have reached a verdict. In arriving at it we have analysed the facts
and the law under the following headings:
(a)
Between Kudakwashe
Musvamhuri and
the accused, who struck the fatal blow on the deceased?
(b)
If it was the accused, was it an aberratio
ictus
[deflected blow] situation?
(c)
If indeed it was an aberratio
ictus
situation, is the accused nevertheless guilty of the crimes charged,
or some other crimes?
[i]
Who struck the deceased?
This
is a question of fact. It is answered upon a thorough consideration
of all the evidence led.
Counsel
for the accused says Kudakwashe
Musvamhuri and
Kizito Mutongoza should not be believed because they were accomplices
to the murder. They were once arrested and remained on remand for
close to three years before they were turned into State witnesses. As
such, their evidence should not be accepted since they had the motive
and the intention to incriminate the accused and thereby save
themselves from any possible prosecution of the crime.
But,
with all due respect, the defence is mistaken. In relation to the
alleged murder of the deceased, Kuda and Kizito were not accomplices
in the sense contemplated by section 267 of the Criminal Procedure
and Evidence Act [Chapter
9:07].
They were not turned into State witnesses and granted immunity from
prosecution on condition they answered all questions put to them
satisfactorily. As counsel for the State explained, the State made
the decision that the police had arrested and charged them wrongly.
There was no intention to prosecute them.
An
accomplice is an accessory to the commission of the crime. He is not
the actual perpetrator. His liability stems from his own conduct
[coupled with the requisite mens
rea]
but which is accessory
in nature: see JONATHAN BURCHELL, South
African Criminal Procedure
Vol
1 General Principles of Criminal Law, 4th
ed….,.
and S
v Williams 1980 [1] SA 60 [A]…,.
The accomplice wittingly makes common cause with the actual
perpetrator of the crime. He affords the actual perpetrator the
opportunity, the means and the information that furthers the
commission of the crime. But he lacks the actus
reus
of the perpetrator.
Plainly,
Kuda and Kizito fall outside the definition of an accomplice. If the
accused is to be believed, Kuda was the actual perpetrator of the
crime from his own individual act. If he should be charged, and the
accused's allegations were proved, Kuda would be guilty as the
actual perpetrator, not as an accomplice.
We
are satisfied that the evidence of Kudakwashe
Musvamhuri and
Kizito
Mutongoza is
credible. We are mindful that this is a tale told by drunks. They had
all been drinking opaque beer non-stop from about 17:00 hours of the
previous day to the early hours of the following day when the
incident happened. But the version by Kuda and Kizito is coherent. On
the other hand, the accused's version is unworthy of belief beyond
any reasonable doubt.
We
consider the version by the accused unworthy of belief for a number
of factors. Although his warned and cautioned statement, his defence
outline and his viva
voce
testimony in court were all consistent on one thing: that it was
Kudakwashe
Musvamhuri who
assaulted the deceased, beyond that, everything else is incoherent.
For example, how Kuda ended up “mercilessly”
thrashing the deceased with the log; how he himself got pummelled by
the same Kuda on several occasions but each time managing to escape;
why only his log was recovered from the scene, and not the other logs
that Kuda and Kizito allegedly used; how the deceased would not let
out any sound as Kuda thrashed him; why, after pounding the deceased,
Kuda, on seeing the accused advancing armed with a log, he would
concern himself with the deceased's terminal condition to the
extent of advising the accused to pour water on the deceased as he
himself was running away; and so many other aspects, are some of the
inherent improbabilities in his evidence.
The
post-mortem report that was produced without objection put the cause
of death as head injury and cervical subluxation [misalignment of the
seven uppermost vertebrae of the spine, the neck]. The doctor noted,
among other things, occipital haematoma [collection of blood at the
back of the head]. This is consistent with a full-on blow to the
head. The wooden log was produced in court. It was 2.32 metres long.
It weighed 3.565 kilogrammes. It was the only log recovered from the
scene. The accused admitted that it was the log that he carried on
the night in question. He denies ever using it. But, that is like a
toddler denying raiding the cookie jar, or the sugar basin, when his
face and mouth are plastered all over with cookie crumbs or sugar
crystals!
Dominic
Mombeyarara Tofara's evidence dovetailed with the rest of the other
evidence led by the State. His deportment was impressive. He did not
strike as one who is easily excitable. He was straightforward in his
answers and his explanations. In contrast, Mike Mazhara Mutsava, who
was quite elderly, seemed too eager to assist the accused whom he
regarded as an uncle. He made it evident that he owed the accused's
lineage a debt of gratitude for having allocated him the territory
over which he reigned as village head. At first, he claimed he heard
the accused telling Dominic Mombeyarara Tofara the same thing that he
had told him earlier on, namely, that it was Kudakwashe
Musvamhuri who
had assaulted the deceased. However, in further probing by the court,
Mazhara changed his story and said he had heard nothing since he was
too sleepy.
Dominic
Mombeyarara Tofara said
he was friends with both the accused and the deceased. This was not
refuted. The accused tried to cast aspersions on his character by
alleging that he was jealousy that they did not patronise his bottle
store more frequently. That was manifestly a long shot which we
discount. It is our finding that the accused did tell Mombeyarara
that he had struck the deceased by mistake.
It
is our finding that it was the accused that struck the deceased.
[ii]
Was the death of the deceased an aberratio ictus situation?
An
aberratio ictus [or deflected blow] situation occurs where A,
intending to kill B, aims the blow at him but misses, the blow
landing on C instead. If C dies from the blow, whether or not A may
be found guilty of murder or of culpable homicide or of some other
crime, depends on a number of factors.
Our
conclusion, in this case, is that the facts are classically an
aberratio ictus situation. Our finding is that on the night in
question, following an altercation, the accused armed himself with a
huge piece of wood which he swung with much force, intending to
strike Kudakwashe
Musvamhuri with
whom he was fighting; that Kuda ducked and the accused missed. The
blow landed on the deceased who had joined the brawl on the side of
the accused. The blow knocked the deceased down and he died on the
way to hospital.
[iii]
Is the accused guilty of the murder of the deceased?
The
State has already conceded that the accused cannot be found guilty of
murder in relation to the accused. The concession is well made.
Certainly, the accused had no actual intent to kill the deceased.
For
a killing to be murder, both the mens
rea
and the actus
reus
have to converge in respect of the victim. In this case, the
accused's actual or direct intention to do harm [dolus
directus]
was aimed at Kudakwashe
Musvamhuri.
But the actus
reus
in relation to Kuda was not completed or successful. Instead, it was
completed or successful in relation to the deceased. But since there
was no direct or actual intention in relation to the deceased, he
cannot be found guilty on that account.
That
leaves the question whether the accused can be found guilty of the
murder of the deceased with legal or constructive intent [dolus
eventualis].
To do so, there must be a finding that the accused subjectively
foresaw his blow missing Kuda and landing on the person of the
deceased. A finding must be made that the accused was conscious of
the presence of the deceased within the reach of his log, and, that
despite appreciating that his blow might miss and land on the
deceased, he nevertheless went ahead to swing, aim and thrust it.
In
S
v Ncube
1983
[2] ZLR 111 [SC]
the accused was found not guilty of the murder of the deceased, his
brother, where, with the intention of stabbing their uncle with a
spear, the brother interposed in between and received the fatal blow.
The Supreme Court found neither actual nor legal intent on the part
of the accused.
In
the present case, there was no such evidence as would enable the
drawing of an inference that at the crucial moment the accused was
conscious of the presence of the deceased standing next to him.
[iv]
Is the accused guilty of culpable homicide in relation to the death
of the deceased?
Of
culpable homicide, the Criminal Law (Codification and Reform) Act
[Chapter 9:23] (the Code) says in section 49:
“Any
person who causes the death of another person -
(a)
Negligently
failing to realise that death may result from his or her conduct; or
(b)
Realising that death may result from his or her conduct and
negligently
failing to guard against that possibility;
shall
be guilty of culpable homicide and liable to imprisonment for life or
any definite period of imprisonment or a fine up to or exceeding
level fourteen or both.”
Thus,
negligence
[culpa]
is the bedrock of this crime. The yardstick to measure it is the
proverbial reasonable person, the diligens
paterfamilias.
Whereas with murder with legal intent the test is subjective: being
whether the accused himself did foresee the consequences of his
conduct, but nonetheless continued; with culpable homicide, the test
is whether a reasonable person would have foreseen the consequences
of the accused's conduct, and whether the accused failed to measure
up to that standard.
It
is sometimes a very thin line between the worst form of culpable
homicide and murder with legal intent. In R
v John
1969
[2] RLR 23,
it was said murder [with legal intent] and culpable homicide are
closely related offences. Together, they cover the whole field of
criminal liability for bodily injury, the one taking over where the
other leaves off.
In
this case, the evidence did not clearly establish at what point
during the accused's altercation with Kudakwashe
Musvamhuri did
the deceased join in. The accused's brawl with Kuda started in the
bottle store. They ended being outside. It seemed common cause that
Kizito
Mutongoza,
Tariro
Kurengu and
the deceased at one point remained inside. But Kuda said when he came
back for his sandals he saw both the accused and the deceased armed
with logs. The accused himself said he armed himself with the log to
scare off Kuda who was mercilessly pummelling the deceased after he
had fallen down. So this means the accused ought to have been aware
of the presence of the deceased in the vicinity of the fight. He
might not have subjectively foreseen his blow missing Kuda, his
intended object, and hitting the deceased instead. However, he ought
to have appreciated the danger of arming himself with such a
dangerous weapon and plunging it forward when visibility was very
poor, and when he ought to have appreciated that some people, other
than Kuda, were nearby.
We
find that the accused was negligent and that it was such negligence
that led to the death of the deceased….,.
1.
The accused is found not guilty of the murder of the deceased,
Charles Kudubva, and is hereby discharged.
2….,.
3.
The accused is hereby found guilty of culpable homicide for the death
of the deceased, Charles Kudubva, on 17 October 2013, at Cherechere
Business Centre, Zaka, Masvingo Province.
